Fibromyalgia as a Basis for an SSDI Claim

SSDI is another stream of disability benefits, in which a claimant applies for benefits through the SSA, based on his/her employment record. While it is distinct from LTD insurance policies, knowing the manner in which the SSA evaluates fibromyalgia sufferers can be crucial when submitting a claim for LTD benefits.

Generally, in order for an SSDI applicant to receive benefits based on fibromyalgia, that applicant must be able to provide proof of the following:

• A history of widespread pain in all quadrants of the body, as well as axial skeletal pain, which has persisted for at least 3 months;
• At least 11 positive tender points on physical examination, which must be found on both the left and right side of the body, above and below the waist; and
• Proof that other disorders that could cause the same symptoms were excluded.

Fibromyalgia in the LTD Context

Traditionally, LTD insurance companies did not give much weight to a claim of fibromyalgia unless another severe medical condition was involved. Accordingly, many claims for LTD benefits based on fibromyalgia were ultimately denied. This is due to, as alluded above, that fibromyalgia is diagnosed primarily on a subjective nature, and, even today, the causes of fibromyalgia are not fully understood.

More recently, however, fibromyalgia, while it still may not be completely understood, has begun to receive recognition as a serious debilitating condition. For example, the American College of Rheumatology (ACR) has issued the following criteria to help LTD insurance companies determine whether an applicant has fibromyalgia (which are very similar to the SSDI factors listed above):

• Evidence of chronic widespread pain, including pain in the back, neck, or chest;
• Proof that a medical professional has ruled out other diseases that could cause the same symptoms; and
• Either (1) tender points sites in at least 11 of 18 tender point areas of the body, occurring on both sides of the body and both above and below the waist, or (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or conditions that often occur with fibromyalgia, such as fatigue, non-restorative sleep, cognitive or memory problems, depression, anxiety, or irritable bowel syndrome.

An experienced disability benefits attorney can help in framing the LTD claim so that it has the best chance of success.

Contact Us Today for Help

If you, or someone you love, are considering filing for LTD benefits due to fibromyalgia, and are curious about how this complicated condition can be the basis for filing LTD benefits, contact a disability benefits attorney as soon as possible. The legal team at Farrell Disability Law has the experience to help you. After analyzing your claim, we will work with you on the LTD application to get you the benefits you deserve as soon as possible. Contact our Jacksonville office today.

Resource:

ssa.gov/OP_Home/rulings/di/01/SSR2012-02-di-01.html

Disability Benefits for Employees

As alluded to above, if a disability leaves an employee unable to work, he/she may be entitled to one of the following three primary sources of disability income – SSDI, LTD, and WC. Each of these programs provides different benefits and has different requirements. Accordingly, it is important to assess all options to ensure that a disabled individual is seeking support from the maximum number of available disability benefits sources. An experienced attorney can help to ensure this is the case.

SSDI

To qualify for SSDI, employees must have worked for five of the past 10 years, be below full retirement age, and suffer from a severe injury, illness, or disability that will last at least a year or result in death. If approved, the amount received from the SSDI program varies based on the amount the employee paid in FICA taxes during his/her career, and the years he/she had been in the workforce. Among the benefits, SSDI automatically transitions to Social Security retirement benefits when the employee reaches full retirement age.

LTD

LTD, which may be offered by an employer, or may be purchased privately, is similar to SSDI in that it provides income replacement if an employee suffers a severe medical condition. However, unlike SSDI, the qualification requirements are generally less strict. Further, benefits typically constitute a fixed percentage of an employee’s salary, an amount substantially higher than SSDI benefits in most cases. Finally, there are typically time limits to the benefits one can receive from LTD, a limitation not faced by SSDI recipients. And, in some cases, LTD policies require an employee to apply for SSDI (or another benefit plan, such as WC or veteran’s benefits), and any benefits received from that program will offset the benefits received by the LTD policy.

WC

Unlike SSDI and LTD, workers’ compensation is a type of insurance that provides wages and medical benefits if an employee is injured while on the job. This is the key difference between WC and the other benefits – that the injury must have been a direct result of a work-related task. Also, unlike SSDI and LTD, WC is intended to be a temporary source of income for the employee while he/she is recovering from the injury. If the injury does become permanent, however, the employee may be eligible for either LTD or SSDI benefits. Although workers may be able to collect SSDI/LTD and WC simultaneously, there are some limits as to the amount of the benefits, and an offset may be in play.

Get Help

If you have suffered a disability, and are unable to continue in your present occupation, contact a disability benefits attorney as soon as possible. The legal team at Farrell Disability Law has the experience necessary to analyze your potential claim, and, help you develop a strategy to obtain the benefits you deserve. Contact our Jacksonville office today.

Resource:

gao.gov/products/GAO-18-248

Fraud and Similar Fault

Providing false information on a disability application is treated a violation of federal law, but how the SSA decides to proceed when such behavior is suspected depends upon the intent of the applicant. Providing false information in connection with obtaining disability benefits can result in one of two accusations that permit legal action: fraud or similar fault. Fraud is only applicable if there is evidence the applicant knowingly provided false information with an intent to obtain disability benefits. Similar fault, on the other hand, does not require intent, and instead relates to acts that:

• involve knowingly providing incomplete or incorrect statements that are important to determining the applicant’s eligibility for benefits, e., material facts; or
• involve knowingly concealing information important to deciding disability benefits.

To prove similar fault, an accusation leveled much more frequently than fraud, the SSA need only find there is enough evidence, when fairly considered, to conclude the that similar fault occurred. In other words, the SSA only needs enough evidence to be persuaded, and not definitive and incontrovertible proof. How the SSA decides to respond to a finding of similar fault depends upon its impact on the disability claim, and it can take any of the following actions:

• do nothing because the false information did not affect the outcome;
• disregard evidence associated with the similar fault;
• modify, deny or terminate benefits;
• require a claimant to repay any benefits received as a result of the similar fault;
• conduct a continuing disability review to decide if a disability is still present, if benefits were previously awarded; or
• refer the case for prosecution.

Responding to an Accusation of a False Claim

Overcoming a finding by the SSA that false information was provided is not easy, but not impossible. At this juncture, it is imperative to work with an experienced disability insurance attorney to have a reasonable chance at negating the consequences of the SSA’s decision, so one may still receive disability benefits. Most false claims are related to medical evidence provided by an applicant or to the applicant’s doctor, but rarely do applicants really intend to mislead or provide inaccurate information. However, to dispel beliefs by the SSA that a person did attempt to mislead, a new round of medical evidence from different doctors may be necessary. Further, the more objective data on which the medical opinions are based, the harder it will be for the SSA to support an accusation of false information. Importantly, an experienced disability insurance attorney will know how to show that false information was neither intentionally nor knowingly provided, a key element in fraud claims.

Get Help

SSDI claims are time consuming and complicated matters that need the attention of an experienced disability insurance attorney. The experienced team at Farrell Disability Law understands the nuances of this process, and can put together and defend a disability application, so you can focus on managing your health. Contact us for a free consultation.

Resource:

chronicleonline.com/news/crime_and_courts/judge-orders-local-woman-to-repay-u-s-gov-over/article_4b577620-222e-11e8-af2f-1f6244cd3dbe.html

Health

The health of a person seeking disability coverage, including the existence of certain pre-existing conditions, will affect not only the cost, but also the extent and type, of coverage available. Insurance companies do not want to insure individuals they assume will need to collect benefits due to significant health concerns, and certain ones will automatically exclude a person from receiving any type of disability insurance. Others, such as spinal disorders, heart conditions, asthma, etc., will result in higher premiums, and could also include a narrower definition of disability, which would complicate qualifying for benefits.

Elimination Period

The elimination period is the amount of time that must pass before an insured is eligible to apply for benefits. The length of time this lasts correlates with the cost of the coverage, and the shorter the period, the higher the premium. The standard waiting period is 90 days, but can extend up to 720, depending on the option selected by the insured.

Definition of Disability

A person’s occupation and the definition of disability applicable to the policy both play into how much coverage will cost, and how easily approval for benefits, in the event of disability, may be obtained. Someone who works in a highly physical occupation, or one which requires specialized and/or delicate use of hands, for example, will face higher premiums. Most importantly, though, is the definition of disability employed by the insurance company, which falls into one of two types: own occupation and any occupation. Own occupation, the better option of the two, grants disability benefits if an insured is unable perform his/her job due to a debilitating condition. Any occupation requires the insured be unable to perform any type of work for which he/she has the skills and qualifications to meet, a standard that is more difficult to satisfy, and is more likely to be disputed if benefits are sought. Further, many policies start with an own occupation disability definition that later converts to any occupation after the first few years of coverage.

Benefit Period

Another important factor is how long benefits will be paid, known as the benefit period, which for long-term disability can extend to retirement age. The younger the insured is, the more important this term must meet his/her financial needs in the event of an early onset of disability.

Other Available Benefits

Finally, many policies will require insureds claiming disability to exhaust other sources of benefits, which offset how much the disability policy will be obligated to pay. Social Security Disability Insurance and workers’ compensation are two examples of similar benefits that could reduce how much a person receives each month.

Consult a Disability Insurance Attorney

Disability benefits are an essential financial lifeline when disability makes working impossible. Getting companies to pay these benefits, however, is not always easy, but the experience and dedicated approach of Farrell Disability Law will give you a real chance at obtaining the result you deserve. Contact the Jacksonville law firm for a free consultation.

Resources:

nerdwallet.com/blog/insurance/disability-insurance-explained/

dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/filing-a-claim-for-your-health-or-disability-benefits.pdf

Underlying Medical Condition

Making a disability claim based solely upon chronic pain, without a “medically determinable” underlying physical or mental impairment, will not be enough to qualify for benefits. To qualify for disability benefits, an applicant cannot simply rely on symptoms to establish a disability, and instead needs to produce evidence of a medically-confirmed condition, through lab work and objective assessments by doctors. In other words, an applicant must show there is a medical condition that is expected to produce the reported symptoms. The SSA does not have a listing for chronic pain, but examples of conditions that commonly produce this persistent, severe and debilitating discomfort include:

• inflammatory arthritis;
• chronic regional pain syndrome;
• fibromyalgia;
• somatoform pain disorder; or
• peripheral neuropathy.

Importantly, an official diagnosis of a pain-producing medical condition from at least one qualified, and ideally more than one, medical doctor or psychiatrist is necessary to meet this threshold requirement. In addition, the condition must be expected to last more than one year or result in death, so records showing continual treatment for one or more years is critical to demonstrating the existence of total disability.

Evaluating Chronic Pain Disability Claims

While applicants can qualify for SSDI benefits by meeting the stringent requirements of the listing for a specific condition, most applicants establish a disability through the assessment of a person’s residual functional capacity (RFC). An RFC assessment looks at an applicant’s ability to engage in work in light of his/her physical and mental limitations. Unfortunately, examiners put little stock in a person who reports debilitating chronic pain, and appealing for a disability hearing in front of an Administrative Law Judge is usually necessary to get approved. Self-documentation of the daily effects of pain on one’s ability to function is important information that should not be downplayed or excluded, and federal court decisions require examiners to consider the intensity, persistence and limiting effects of pain on an applicant’s ability to do basic work activities. Treating physicians should specifically include information on the following factors in their notes to help applicants more convincingly prove total disability:

• the location, duration and frequency of pain;
• the effect of pain on daily activities;
• issues that aggravate pain;
• the type, dosage, effectiveness and side effects of prescribed medication;
• non-pharmaceutical treatment used to treat pain; and
• ways the applicant attempts to manage pain on a daily basis, e., lying down, applying heat/ice, stretching, etc.

Get Legal Advice

Obtaining approval for SSDI benefits is rarely easy, even in what appear to be straightforward situations, but an experienced disability insurance attorney can make the process more efficient and less overwhelming. You need and deserve these benefits, so to give yourself the best chance at getting approved, work with Jacksonville’s Farrell Disability Law to pursue your claim. Contact the office today for a free consultation.

Resource:

scienceworldreport.com/articles/16625/20140814/opioid-use-high-among-social-security-disability-recipients.htm

Citizenship

Being a non-U.S. citizen is not an automatic bar to receiving SSDI benefits as long as an individual can prove he/she is in the country legally, and has worked the required amount of years, and paid taxes. Federal law mandates that all workers pay Social Security taxes, which means that even non-resident aliens can qualify for SSDI benefits for work performed within the U.S. Note that some foreign students and those here on a temporary exchange may be exempt from taxation, and under these circumstances, cannot collect SSDI benefits. Additionally, citizens of certain countries are usually unable to collect any federal benefits, including SSDI benefits, such as North Korea, Cuba and Vietnam, absent admittance to the U.S. as a refugee or similar status. For those from otherwise acceptable countries, in addition to proving the existence of a qualifying disability, non-citizens, particularly non-resident aliens, must produce proof of their right to be in the U.S., which is satisfied through documentation of the following:

• admission as a refugee;
• admittance for political asylum;
• temporary stay on a non-immigrant visa; or
• permission to stay for humanitarian or other policy reasons.

Permanent residents only need to produce their green card identification number.

Residency

Citizens approved for SSDI benefits, but living outside the country, are still eligible to keep their benefits without the need for periodic returns to the U.S. The important point to keep in mind for this situation is to update the Social Security Administration with changes in address or other contact information to avoid disruptions in benefits. For non-citizens, the process is bit more complicated, as both permanent residents and resident aliens are usually required to return to the U.S. once every 30 days or stay for 30 days every six-month period if they live abroad and want to retain SSDI benefits.

Non-English Speakers

A large number of non-citizen workers in this country, especially in jobs requiring manual labor, have difficulty communicating in English, which greatly limits their available job prospects following the onset of a disability. This limitation is factored into a disabled worker’s ability to resume working in a less physically-demanding job, and may be particularly significant for older workers (those over 45). Applicants who do not automatically qualify for SSDI benefits based on the listing requirements for recognized conditions, which is the overwhelming majority, must demonstrate they do not have the residual functional capacity to resume any work. Education is part of this analysis, and not being able to communicate in English will eliminate most jobs from consideration. Further, an older applicant will have more difficulty adapting to new work, making approval more likely.

Get Help

Dealing with the loss of financial independence due to a disability is never easy, but you can make the process of applying for SSDI benefits less stressful by working with an experienced disability insurance attorney. The attorneys at Farrell Disability Law have years of experience representing clients in disability claims, and know how to best approach your case to get the results you deserve. Contact the Jacksonville law firm for a free consultation today.

Resource:

fool.com/retirement/general/2015/03/08/social-security-5-surprising-facts-about-noncitize.aspx

Compassionate Allowance

SSDI applicants with cancer still must meet the standards for disability applied to any other condition. However, the SSA does offer the Compassionate Allowance program, which expedites processing certain applications if the disabling condition is included on a list of serious, and often terminal, illnesses. These conditions are viewed as being so severe and pervasive by their nature that disability is the presumed consequence. Currently, more than 50 types of cancer are associated with this program, which cuts approval times for benefits from years to weeks. In order to qualify, an applicant must have a diagnosis for a listed condition, and in the case of cancer, the cancer needs to have spread, be inoperable, or be recurring. The SSA automatically screens applications for conditions that could qualify for this expedited process, so no special procedure is needed to access the program.

Listings of Impairments

The SSA also approves applicants that meet the listing standards for hundreds of medical conditions listed in the listings of impairments, but approval through this route does not include expedited approval. The listings outline the symptoms and prognoses an applicant must prove to qualify for benefits, and includes a substantially greater number of types of cancer compared to the Compassionate Allowance program. Note that a diagnosis of cancer by itself is not likely to be sufficient to get approved, and evidence about the disease’s effect on a person’s ability to work will be required. Certainly, the more aggressive a cancer tends to be, the easier approval will be granted, but it is still possible to qualify for disability benefits if medical evidence shows the cancer spread, could not be fully removed, or came back. Obtaining approval solely on the side effects of chemotherapy or radiation treatment is difficult because they are temporary and vary in severity over time. The SSA may delay a decision to wait for the results of treatment and/or to verify a person was unable to work for a year before making a final determination.

Medical-Vocational Allowance

If a cancer patient cannot meet the listing requirements, he/she must produce evidence that a medical-vocational allowance should be granted. This allowance is based upon an applicant’s ability to work in light of past work history, education, age and the individual’s functional capacity. The side effects of radiation and chemotherapy can become permanent, making a return to work impossible. An experienced disability insurance attorney can help an applicant obtain the documentation needed to prove the medical-vocational allowance is warranted, and should be consulted at the beginning of the application process to increase chances of a faster approval.

Get Help

Obtaining SSDI benefits is a large undertaking, and usually essential to the financial stability of a disabled individual. Farrell Disability Law understands how crucial disability benefits are to your well being, and will fight to get the money you need and deserve. Contact the Jacksonville law firm for a free consultation, and learn how they can help you, even if benefits were initially denied.

Resource:

kare11.com/news/investigates-disability-benefit-delay-catch-22/489728566

Mental Impairment Listing

There are two methods used by the SSA to determine if an individual has a disabling condition:

• the individual meets the medical criteria for a condition listed in the SSA’s “listings of impairments;” or
• the individual is given a medical vocational allowance because the impairment prevents him/her from sustaining regular and consistent employment.

Meeting the requirements of a listing in the blue book is quite difficult due to the narrow and specific types of dysfunction an SSDI claimant must demonstrate to satisfy the SSA’s definition of how a particular impairment must manifest to be considered disabling. Some of the mental disorders recognized by the SSA include:

• neurocognitive disorders (Alzheimer’s, dementia or Huntington’s disease);
• schizophrenia and other psychotic disorders;
• mood disorders (depression);
• anxiety-related disorders (obsessive compulsive disorder);
• autism;
• eating disorders;
• PTSD and other trauma-induced disorders; and
• learning disabilities and intellectual development disorders (low IQ).

Note that being diagnosed with a condition listed in the blue book is not enough by itself for the SSA to find a disability. There must also be evidence of the condition’s impact on the performance of daily life, ability to function in society and to complete tasks.

If a person does not meet a listing, the situation for the majority of SSDI claimants, the SSA then looks at the individual’s mental residual functional capacity to perform past work or to perform work in another field. Essentially, the SSA examiners will look at what type of work a person could perform in spite of the mental disorder, and if no work is possible, disability benefits will be awarded. Some limitations normally considered include:

• ability to understand and remember instructions;
• ability to get along with others;
• ability to tolerate stress;
• ability to complete tasks in a reasonable amount of time; and
• ability to adapt to a changing environment.

Proving Disability

Unlike many of the disabling conditions used to claim SSDI benefits, much of the diagnosis and treatment of mental impairments are based on subjective evidence, and not objective medical testing. Thus, individuals with mental disorders need to be as candid and thorough about the impact of these conditions with their providers as possible. This transparency will allow more information about the severity of a mental disorder to get into a person’s medical records, which is the evidence examiners principally take into account. Consequently, all records from mental health providers, hospitalizations related to the condition, and medications taken to control its effects should be included in the SSDI claim application. An experienced disability insurance attorney is the best source to learn which records would be most helpful to a claim.

Get Help

Receiving SSDI benefits is essential to the financial stability of millions of Americans, and if you find yourself in this group, give yourself the best chance at approval by working with an experienced disability insurance attorney. Farrell Disability Law understands how to win disability claims, and is available to evaluate the facts of your case. Contact the Jacksonville office for a free consultation.

Resource:

huffingtonpost.ca/2017/10/25/invisible-disability-photos_a_23255479/

Offsetting by Private Disability Providers

Most private long-term disability policies, especially those offered as a group plan by an employer, include provisions that authorize the reduction of monthly benefits if income from other benefit programs is also collected by a policyholder. Examples of benefits that typically allow an insurer to offset monthly benefits include:

• SSDI;
• workers’ compensation;
• disability benefits offered under certain pension and retirement plans;
• compensation from an injury settlement; and
• benefits paid from another long-term disability policy.

The receipt of SSDI benefits is particularly important to insurers who want to ensure a disabled policyholder only receives the percentage of monthly earnings allowed under the policy, and not in excess of this amount (often 60 percent of an insured’s monthly earnings) due to receiving disability benefits from more than one source. Further, many policies require those filing a disability claim to pursue all other benefits for which he/she may be eligible, including appealing denials, and provide documentation confirming other benefits were sought. Most policies allow for a dollar-for-dollar reduction of SSDI benefits received by the insured, and obligate policyholders to reimburse the insurance company if he/she is given a lump-sum payment for back SSDI benefits following approval. Additionally, long-term disability benefits may also be further reduced by any SSDI benefits given to the recipient’s family. However, note that money received from the following sources will usually not reduce an insured’s disability monthly benefit:

• profit sharing plans;
• 401(k) plans;
• employee stock options;
• severance; and
• IRAs.

Offsetting under SSDI

The monthly benefit most SSDI recipients receive is typically not enough to support him/her, and most will seek other disability benefit options, or even part-time, occasional work, to supplement income. A person is only eligible to collect benefits under one Social Security program at any one time, and if a person qualifies for more than one Social Security program, he/she can choose the option with the higher benefit, but not both. The collection of other disability benefits does not generally affect SSDI benefits, unless it involves workers’ compensation. The combined payments from SSDI and workers compensation cannot exceed 80 percent of a person’s average income prior to their disability, and under Florida law, the workers’ compensation benefit will be reduced to stay within those limits. SSDI benefits will readjust to normal levels once workers’ compensation benefits are exhausted.

Get Help

Coordinating benefits from multiple sources is often financially necessary, but procedurally complicated. Handling just one disability claim is more than enough, but trying to juggle claims with different providers can quickly overwhelm most people. Instead of trying to navigate the disability process alone, work with the experienced disability firm of Farrell Disability Law. Farrell Disability Law has over 20 years representing clients in disability claims, and will work to get you the benefits you deserve. Contact the Jacksonville office for a free consultation.

Resource:

jdsupra.com/legalnews/erisa-can-a-court-invalidate-the-social-93509/

Short-Term Disability

As alluded to above, Florida does not have a state-mandated program covering disabilities that occur off the job, so disabled individuals in this situation must look to private disability insurance policies to replace a portion of lost income. Many employers include short-term disability in an employee’s benefits plan at no cost, and others offer employees the option of enrolling in a self-funded group policy. Short-term disability coverage applies when a person is suffering from a temporary medical condition that prevents him/her from working for a period of time. Typically, policies will pay 40 to 60 percent of a person’s income after a short waiting period is satisfied, one to fourteen days is the norm. Further, short-term disability benefits are only paid for a certain period of time, usually 10 to 52 weeks, and if a person is still unable to work when the policy benefit is exhausted, long-term disability would take over, if available. Group policies through an employer frequently require a disabled employee to use all of his/her sick/personal days before the disability coverage would start, and documentation of the employee’s medical condition, inability to work, and projected return date must be provided to prove a disability exists.

Long-Term Disability

Long-term disability is insurance coverage that pays a portion of a disabled person’s income when he/she is unable to work for an extended period or permanently, often due to a major illness, such as cancer, or serious physical injury. As noted above, long-term disability benefits are usually available once short-term disability coverage has run out. Long-term disability offered through employers is often optional voluntary insurance an employee must choose to purchase, but doing it through an employer group plan is almost always less expensive than purchasing an individual policy. Further, many policies are portable, meaning once purchased, they stay with the person, even if he/she changes employers. In light of the longer period out of work, long-term disability usually pays a slightly higher percentage of person’s income, 60-80 is typical, but most have maximum monthly limits. Further, the duration of the plan can vary from a set number of years or until age 65. Importantly, long-term disability plans have waiting periods before the coverage is available, and include a definition for what constitutes a disability. The most common definitions differentiate between own occupation and any occupation. Own occupation disability means the policy will payout if a person is unable to work in his/her profession, in contrast with any occupation disability, which requires the person be unable to perform any job before benefits will be paid. Plainly, own occupation is the definition of disability that is most beneficial to the disabled policyholder, since it is less restrictive. However, insurance companies regularly deny legitimate disability claims, and the services of an experienced disability insurance attorney are often needed to force providers to honor the terms of their policies.

Talk to a Disability Insurance Attorney Today

Securing disability benefits is too important an issue to leave entirely in the hands of insurance companies out to maximize profits. Protect yourself by working with a knowledgeable disability insurance attorney who understands the law, and knows tactics used by insurers to deny claims. Farrell Disability Law has years of experience helping clients obtain the disability benefits they deserve, and is available to evaluate the merits of your case. Contact the Jacksonville office today for a free consultation.

Resource:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0627/Sections/0627.4233.html